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Concesionaria Dominicana De Autopistas Y Carreteras, S.A v. the Dominican State

December 20, 2012

CONCESIONARIA DOMINICANA DE AUTOPISTAS Y CARRETERAS, S.A., PETITIONER,
v.
THE DOMINICAN STATE,
RESPONDENT.



The opinion of the court was delivered by: Robert L. Wilkins United States District Judge

SUMMARY MEMORANDUM OPINION; NOT INTENDED FOR PUBLICATION

IN THE OFFICIAL REPORTERS

MEMORANDUM OPINION*fn1

Petitioner Concesionaria Dominicana de Autopistas y Carreteras, S.A. ("CODACSA") brings this action to confirm an arbitral award against Respondent the Dominican State (the "Dominican Republic"), pursuant to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the "New York Convention"), June 10, 1958, 21 U.S.T. 2517, T.I.A.S. No. 6997, which was codified by Congress at Chapter 2 of the Federal Arbitration Act, 9 U.S.C. §§ 201-08. The matter is now before the Court on CODASCA's Motion for Default Judgment. (Dkt. No. 7). For the reasons set forth herein, CODASCA's Motion will be GRANTED, and the Court will CONFIRM the underlying arbitral award issued in favor of CODASCA and against the Dominican Republic.

BACKGROUND

On November 26, 2001, CODACSA entered into a concession contract with the Dominican Republic related to the funding and development of several stretches of highway extensions in the Dominican Republic. (Dkt. No. 1 ("Petition") at ¶ 6).*fn2 Roughly speaking, the contract granted CODACSA the right to collect tolls at three separate toll stations over the life of the concession (approximately thirty years), in exchange for various financing and construction obligations on the part of CODACSA. (Id.). Shortly after the contract was approved and enacted by the Dominican government, however, CODACSA asserts that the Dominican Republic breached and repudiated the contract by failing to deliver a contractually-required bank guarantee, among other ways. (Id. at ¶ 8). In turn, CODACSA initiated arbitration proceedings before the Arbitration Court of the International Chamber of Commerce ("ICC"), as called for by the terms of the concession contract. (Id.).*fn3

Following the appointment and confirmation of three arbitrators, the ICC held evidentiary hearings in the matter on September 6-10, 2010, and October 25-26, 2010, in Washington D.C. (Id. at ¶ 12). The arbitrators ultimately issued their written award on January 11, 2012, finding that the Dominican Republic breached the contract in several respects and awarding CODACSA damages in the amount of $33,683,759.67, along with administrative expenses, attorneys' fees, and pre- and post-award interest. (Id. at ¶ 14; Dkt. No. 1-4 at Sect. XIII). Several months later, on May 25, 2012, the ICC arbitrators issued an "Addendum to the Final Arbitration Award," setting forth revised damages calculations for the award in favor of CODACSA. (Petition at ¶ 16; Dkt. No. 1-7 at Annex A, ¶ 914). More specifically, CODACSA was awarded damages as follows: (1) $37,438,424.56 for losses arising from the termination of the contract; (2) pre-award interest at the rate of LIBOR plus 2% per annum, amounting to a total of $3,016,480.42;*fn4 (3) $200,000.00 for administrative expenses of the ICC, including the fees and expenses of the arbitrators; and (4) $1,892,672.86 in attorneys' fees. (Id.). In sum, the total amount due at the time of the final award was $42,547,577.84. (Id.). The final award also provided for post-award interest at the rate of LIBOR plus 2% per annum, if the award was not paid within sixty days from the date of notification.*fn5 (Id.).

On June 13 and 26, 2012, CODACSA requested that the Dominican Republic provide assurances that it would honor and pay the final award within the applicable sixty-day period. (Petition at ¶ 17). CODACSA also advised that, absent receipt of such assurances by July 10, 2012, CODACSA would initiate judicial proceedings to confirm the final award as a judgment. (Id.). While the Dominican Republic subsequently acknowledged the receipt of CODACSA's requests for assurances, it did not substantively respond to those requests. (Id.).

On August 13, 2012, CODACSA filed its Verified Petition to Confirm ("Petition") initiating these proceedings. As required by Article IV of the New York Convention, CODACSA attached to its Petition a certified copy of the final arbitral award, along with a certified copy of the parties' arbitration agreement (set forth at Paragraph 23 of the concession contract). On September 10, 2012, CODASCA served a copy of its Petition on the Dominican Republic through a courier, DHL World Wide Express. (Dkt. No. 5). The Dominican Republic received and accepted service of the Petition two days later, on September 12, 2012. (Dkt. No. 6). To date, however, the Dominican Republic has not responded to CODACSA's Petition, nor has it otherwise appeared in this action whatsoever. As a result, CODASCA filed this Motion for Default Judgment on November 19, 2012. (Dkt. No. 7). The Court initially issued a Minute Order advising that CODACSA's Motion was premature, insofar as no entry of default had been entered against the Dominican Republic. (See Minute Order dated Nov. 30, 2012). CODACSA then promptly moved for entry of default against the Dominican Republic, which the Clerk of Court entered on December 3, 2012. (Dkt. No. 13).*fn6 This Motion is now ripe for decision.

ANALYSIS

A.The Court Has Jurisdiction To Confirm The Arbitral Award

To begin with, given the Dominican Republic's status as a foreign state, the Court must first consider the impact of the Foreign Sovereign Immunities Act ("FSIA") upon its power to hear this case. Creighton Ltd. v. Gov't of the State of Qatar, 181 F.3d 118, 121-24 (D.C. Cir. 1999). The FSIA renders a foreign state "presumptively immune from the jurisdiction of United States courts." Saudi Arabia v. Nelson, 507 U.S. 349, 355 (1993) (citing Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 488-89 (1983)). Therefore, "unless a specified exception applies, a federal court lacks subject-matter jurisdiction over a claim against a foreign state." Id.; see also Peterson v. Royal Kingdom of Saudi Arabia, 416 F.3d 83, 86 (D.C. Cir. 2005). As relevant here, the FSIA specifically prescribes a jurisdictional exception for purposes of confirming certain arbitration awards:

A foreign state shall not be immune from the jurisdiction of courts of the United States . . . in any case . . . in which the action is brought . . . to confirm an award made pursuant to . . . an agreement to arbitrate, if . . . the agreement or award is or may be governed by a treaty or other international agreement in force for the United States calling for the recognition and enforcement of arbitral awards.

28 U.S.C. ยง 1605(a)(6)(B). This Circuit has explained that the "New York Convention is exactly the sort of treaty Congress intended to include in the arbitration exception." Creighton Ltd., 181 F.3d at 123-24 (quoting Cargill Int'l S.A. v. M/T Pavel Dybenko, ...


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